Why JNU's Kanhaiya Kumar Did Not Commit Sedition, And Won't Get Convicted For It

NEW DELHI, INDIA - SEPTEMBER 13: (L-R) AISA`s candidates Shehla Rashid Shora, Vice President, Rama Naga, General Secretary and AISFs Kanhaiya Kumar elected as President, pose during a photo call, at Jawaharlal Nehru University, on September 13, 2015 in New Delhi, India. RSS-backed Akhil Bharatiya Vidyarthi Parishad (ABVP) won a seat in Jawaharlal Nehru University Students' Union (JNUSU) polls after 14 years. ABVP outshone its opponents by huge margins and swept the Delhi University Students' Union (DUSU) elections this year despite predictions of a tough four-corner fight. (Photo by Sanjeev Verma/Hindustan Times via Getty Images)

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It is almost certain that Kanhaiya Kumar won’t get convicted for sedition. The president of the students union at Delhi’s left-leaning Jawaharlal Nehru University has been arrested on charges of sedition and criminal conspiracy.

As long ago as 1962, the Supreme Court had added a caveat to the sedition law--it must be accompanied by violence, or direct incitement to violence. Raising anti-India slogans to protest the hanging of Afzal Guru, even if this charge is true against Kanhaiya Kumar, does not amount to incitement of violence. The threat of violence has to be real and credible.

Even though the sedition law now lacks teeth, governments love it as a political tool because it is a non-bailable and cognizable offence. In other words, spending a few nights a jail is certain.

The maximum punishment, if convicted, is life imprisonment but the colonial era law rarely results in conviction. It is now merely a convenient tool for state governments to silence critics and dissidents. Kanahaiya Kumar finds himself in exalted company of Indians who have been jailed for sedition, including Mahatma Gandhi and Lokmanya Tilak. The British regularly used sedition against Indian freedom fighters.

The “logic of the situation” is nothing but the need to suppress political dissent, silence voices we don’t want heard.

Gandhi once told a British judge that “sedition was the highest moral duty of a citizen”. Since the law is about “disaffection against the state”, Gandhi pointed out that “affection cannot be manufactured or regulated by law”.

India's first prime minister, Jawaharlal Nehru, said this of the sedition law in 1951: “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned, that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it.”

The “logic of the situation” is nothing but the need to suppress political dissent, silence voices we don’t want heard. In 2012, cartoonist Aseem Trivedi was charged with sedition for drawing cartoons that commented on corruption scandals of the Manmohan Singh government.

Writer Arundhati Roy, when charged with sedition for advocating right to self-determination in Kashmir, quoted Nehru as having advocated the same.

As early as 1953, the Bihar government used the sedition law against tribals demanding a separate state. That state exists today, called Jharkhand.

Even though the sedition law now lacks teeth, governments love it as a political tool because it is a non-bailable and cognizable offence.

Granting bail to Dr Binayak Sen, who is being tried under the sedition law, the Supreme Court said in 2011, “We are a democratic country. He may be a (Maoist) sympathiser. That does not make him guilty of sedition." The court said that the Chhattisgarh government had failed to make out a case for sedition. That is, it had failed to prove there was incitement to or involvement in violence. Merely possessing Maoist literature, the court said, did not make him a member of the banned CPI (Maoist). The court asked if keeping Gandhi’s autobiography at home made one a Gandhian.

The British gave India the sedition law in 1860, to be able to detain those who spoke against the colonial government. In 2010, the British parliament repealed the sedition law. It is time for India to rethink sedition law, too.